Duran v. Eatmon

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT WITHOUT PREJUDICE

Plaintiff Ivan Duran, a state prisoner proceeding pro se, filed a complaint for violation of his civil rights pursuant to 42 U.S.C. § 1983 and for violation of the Gender Motivated Violence Act ("GMVA"). The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. On July 24, 2007, the Magistrate Judge issued a Report and Recommendation, recommending the complaint be dismissed for failure to exhaust administrative remedies without prejudice and without leave to amend.*fn1 Plaintiff did not file objections to the Report and Recommendation.

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003).

In the absence of any objections, the court ADOPTS the Report and Recommendation. The complaint is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

IT IS SO ...

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